Introduction

John McCrorey, a 61-year-old lieutenant in the Philadelphia Police Department’s Narcotics Bureau, sued the City of Philadelphia for age discrimination and retaliation after being transferred from the high-profile East Division to the Northwest Division shortly before his retirement. He alleged that Chief Inspector Christopher Flacco targeted older officers—especially those enrolled in the Deferred Retirement Option Program (DROP)—for reassignment, and that the City later retaliated by denying his request to extend his DROP retirement date following his EEOC charge.

The District Court granted the City summary judgment on both claims, finding that McCrorey’s transfer did not constitute an “adverse employment action” under the Age Discrimination in Employment Act (ADEA) and that there was no causal link between his EEOC complaint and the City’s denial of his DROP‐extension application. Before the Third Circuit decided the appeal, the Supreme Court in Muldrow v. City of St. Louis (601 U.S. 346, 2024) rejected the standard requiring a “significant” or “serious” harm for adverse employment actions and held that a plaintiff need only show “some harm” to an identifiable term or condition of employment. Applying Muldrow, the Third Circuit vacated the grant of summary judgment on McCrorey’s age‐discrimination claim and remanded, while affirming the denial of his retaliation claim.

Summary of the Judgment

In a May 14, 2025, non-precedential ruling, a divided panel of the Third Circuit:

• Vacated the District Court’s summary judgment for the City on McCrorey’s ADEA age‐discrimination claim and remanded for proceedings under the “some harm” standard articulated in Muldrow v. City of St. Louis.
• Affirmed the grant of summary judgment against McCrorey’s retaliation claim, concluding that there was no evidence the decision‐maker who denied his DROP extension application knew of his EEOC charge.

The court applied de novo review, recognized the three-step McDonnell Douglas burden‐shifting framework for discrimination and retaliation, and held that the Muldrow decision compels a reevaluation of whether McCrorey’s lateral transfer entailed “some harm” to an identifiable term or condition of his employment.

Analysis

Precedents Cited

• Muldrow v. City of St. Louis (601 U.S. 346, 2024): Overruled the Third Circuit’s heightened “significant harm” standard for adverse employment actions, replacing it with a “some harm” test for any change to an identifiable term or condition of employment.
• McDonnell Douglas Corp. v. Green (411 U.S. 792, 1973): Established the familiar three-step burden-shifting framework for discrimination claims.
• Gross v. FBL Fin. Servs., Inc. (557 U.S. 167, 2009): Confirmed that age discrimination plaintiffs bear the ultimate burden of showing age was the determinative factor.
• Smith v. City of Allentown (589 F.3d 684, 2009) and Potence v. Hazelton Area Sch. Dist. (357 F.3d 366, 2004): Defined the elements of a prima facie case of age discrimination under the ADEA.
• Daniel v. Sch. Dist. of Phila. (776 F.3d 181, 2015) and Marra v. Phila. Hous. Auth. (497 F.3d 286, 2007): Articulated the burden-shifting framework and elements for retaliation claims under Title VII, applied analogously to the ADEA.
• Various summary‐judgment and procedural precedents (e.g., Reilly v. City of Atl. City, Ellis v. Westinghouse Elec. Co., Peifer v. Bd. Prob. & Parole) on de novo review and the standards for materiality and genuine dispute of fact.

Legal Reasoning

The Third Circuit began by reaffirming that summary judgment is appropriate only when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Under McDonnell Douglas, McCrorey had to establish a prima facie case of age discrimination by showing that he (1) was over 40; (2) was qualified; (3) suffered an adverse employment action; and (4) was replaced or passed over for someone sufficiently younger.

The District Court, relying on pre-Muldrow Third Circuit precedent, held that McCrorey’s lateral transfer—with the same title, salary, and duties—did not rise to the level of an “adverse employment action” because it caused no “direct, immediate economic harm.” The Third Circuit concluded that this standard was superseded by the Supreme Court’s ruling in Muldrow, which requires only that an employee demonstrate “some harm” to an identifiable term or condition of employment, thus lowering the bar for what constitutes an adverse action. Because the District Court had not applied this revised standard, the panel vacated the summary judgment on the discrimination claim and remanded for further fact-based inquiry under Muldrow’s “some harm” test.

With regard to McCrorey’s retaliation claim—premised on the City’s denial of his DROP‐extension application after he filed an EEOC charge—the court assumed arguendo that the denial could constitute an adverse action. However, it affirmed summary judgment because McCrorey failed to show a causal connection: Lieutenant Ferguson, the official who reviewed DROP extensions, credibly testified that he had no knowledge of the EEOC complaint and that no extension requests from officers on extended leave were approved.

Impact

This decision carries several implications:

• Lower courts must revisit past summary judgments in ADEA and Title VII cases where a “significant” or “serious” harm standard was applied to adverse employment actions and instead apply Muldrow’s “some harm” test.
• Employers and counsel should reassess internal policies and definition of adverse actions, recognizing that even nominal or non-economic changes may qualify as actionable harms.
• Future plaintiffs may prevail at the prima facie stage by demonstrating minimal or intangible harm to terms or conditions—such as reputational damage, prestige, or professional development opportunities—without incurring economic loss.
• This broader interpretation of adverse action may spur additional claims, emphasizing the importance of thorough documentation and nondiscriminatory justifications for reassignments or transfers.

Complex Concepts Simplified

• Adverse Employment Action: Any change in job status or working conditions that causes “some harm” to an identifiable term or condition of employment, even if non-economic.
• Summary Judgment: A judicial decision made without a full trial when there is no genuine dispute over facts material to the outcome.
• McDonnell Douglas Framework: A three-step burden-shifting test for discrimination claims requiring a prima facie showing by the plaintiff, a nondiscriminatory explanation by the employer, and proof that the employer’s stated reason is a pretext.
• Protected Activity: Actions by an employee—such as filing an EEOC charge—protected by anti-retaliation provisions of federal law.
• DROP (Deferred Retirement Option Program): A city program allowing employees to lock in a future retirement date and receive pension accruals while still on the payroll until that date.

Conclusion

McCrorey v. City of Philadelphia marks a pivotal application of the Supreme Court’s Muldrow decision, clarifying that any change causing “some harm” to an identifiable term or condition of employment may qualify as an adverse action under the ADEA. By vacating and remanding the age‐discrimination claim, the Third Circuit ensures that the lower court will reevaluate McCrorey’s reassignment through this more inclusive lens. The affirmation of the retaliation claim underscores the necessity of establishing both an adverse action and a causal link—particularly the decision-maker’s knowledge of the protected activity. Together, these rulings strengthen employee protections against subtle forms of discrimination while reinforcing rigorous standards for proving retaliation.